Case closed?

Wednesday

Sep 24, 2008 at 2:00 AM

Whenever someone is shot and killed by a police officer, emotions in the community run high. There are those who always defend the police officer in such cases, and there are those who always cry "police brutality."

Whenever someone is shot and killed by a police officer, emotions in the community run high. There are those who always defend the police officer in such cases, and there are those who always cry "police brutality."

Sifting fact from fiction and trying to execute justice — justice for the family of the victim and justice for the police officer — is never easy.

But on the narrow legal question of whether the shooting death of André Martins by Yarmouth police Officer Christopher Van Ness on July 27 was a "justifiable homicide," the Cape and Islands district attorney has ruled correctly.

Van Ness fired in self-defense, and in such cases, the commonwealth must disprove the right of self-defense beyond a reasonable doubt. Considering the circumstances in this case, that would be nearly impossible.

After all, the facts show that, following a brief, high-speed chase, Martins "gunned" his car toward Van Ness after being ordered to stop. Moving motor vehicles, under state law, are considered dangerous weapons.

Nevertheless, serious questions remain — questions that every district attorney, every chief of police, every police trainer, every officer should not only consider, but actively confront.

First, could Van Ness have avoided the accelerating car without firing a shot?

Under previous case law (Commonwealth v. Klein, 1977; Commonwealth v. Kendricks, 1966; and Commonwealth v. Houston, 1955), there are two requirements to prove self-defense: "... It must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm (emphasis added)."

In this case, District Attorney Michael O'Keefe found in Van Ness' favor on both requirements. O'Keefe argues that Van Ness, forced to make a split-second decision, felt he had no alternative but to shoot.

And, again, on the narrow legal question of justifiable homicide, O'Keefe is right. But, as a matter of police procedure and proper training, why did Van Ness end up that night in a position where he felt like he had no alternative?

This policy should be changed because of the facts in this case and many other cases where police have shot at moving vehicles, which has the potential of endangering others. For instance, one of the three shots fired in this case skidded across the roof of the car and it has not been found. That bullet could have ended up in the occupied bedroom of a nearby house.

Third, if Van Ness had not fired and allowed Martins to speed away, would all have been lost?

Police officials and many others would no doubt argue that allowing Martins to speed away would have endangered the life of the operator, his passenger and anyone else in the area at the time. But O'Keefe pointed out that firing at a speeding car, even one recklessly driven, would not in itself be justifiable.

As recently as Friday night, a 16-year-old allegedly tried to run over a police officer in Hyannis, but Barnstable police Officer Keith Sexton did not shoot him.

Sexton approached the car on the passenger side and yelled to the young men inside to show their hands. Instead, the driver apparently swerved the car toward Sexton and sped away. The officer followed the car to a nearby intersection and arrested the driver and passenger.

And on Sept. 18, a 24-year-old Hyannis man tried to run down Barnstable police in a stolen excavator. Five police officers tried to get Christopher Lunn to stop the 20,000-pound piece of construction equipment, but they said Lunn directed the machine at them and ended up hitting two telephone poles.

Barnstable police shot at him three times with a "bean bag" shotgun, shattering the window of the excavator and hitting Lunn in the shoulder and head or nose. Lunn was arrested on five counts of assault by dangerous weapon for allegedly driving at the police officers.

Granted, the circumstances in all these cases are different, but this point remains: The Barnstable police officers never felt cornered. They always kept their options open.

O'Keefe argues that a police officer, like anyone else, "is required to retreat to avoid combat if that would be a reasonable option to avoid imminent danger, but he is not required to if, in doing so, he further endangers himself by pinning himself against the car or by trying to guess at the real intention of the operator who has evidenced by all his actions that he is a threat to the safety of persons including the officer."

Again, Van Ness fired in self-defense, and a criminal case against him would be hard to build. But the case bespeaks improper police procedures.

Which is why the family of Martins may file a civil wrongful death suit against the Yarmouth police.

Fourth, we remain uncomfortable with the notion of police investigating police. O'Keefe maintains that state law gives the district attorney's office, and the state police assigned to that office, the right to investigate local police shootings.

But even though the state police is a different public agency from local police departments, many of the state police investigators know the local police. There is always the appearance of conflict of interest.

As a result, we urge a state legislator to file legislation to require the state attorney general's office to investigate local police shootings.

Finally, this latest police shooting in Yarmouth was a tragedy for all involved, including the police officer. Now is the time for law enforcement officials from across the Cape to closely review the details of this shooting for training purposes and ask themselves some tough questions.